Okiya Omtatah Okoiti, Rufus Mutahi Kanyua (For Ndeiya Land Owners), Rose Njeri Mwangi (For Ndeiya Land Owners) & Isaack Kanyi Njoka (For Ndeiya Land Owners) v Ministry of Lands and Physical Planning, Attorney General, National Land Commission, Kenya Railway Corporation, County Government of Kiambu & Harunani & Associates [2021] KEELC 1580 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMNET AND LAND COURT AT THIKA

PETITION NO. 9B OF 2019

OKIYA OMTATAH OKOITI....................................................1ST PETITIONER

RUFUS  MUTAHI KANYUA

(FOR NDEIYA  LAND OWNERS).........................................2ND  PETITIONER

ROSE NJERI MWANGI

(FOR NDEIYA  LAND OWNERS)...........................................3RD PETITIONER

ISAACK KANYI NJOKA

(FOR NDEIYA LAND OWNERS)...........................................4TH PETITIONER

VERSUS

MINISTRY OF LANDS AND PHYSICAL PLANNING......1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL..................2ND RESPONDENT

NATIONAL LAND COMMISSION......................................3RD RESPONDENT

KENYA RAILWAY CORPORATION...................................4TH RESPONDENT

COUNTY GOVERNMENT OF KIAMBU............................5TH RESPONDENT

AND

HARUNANI & ASSOCIATES...............................................6TH RESPONDENT

JUDGMENT

By a Petition dated 10th July 2019, the Petitioners sought for orders against the Respondents that;

a) An order quashing the reference in the undated Kenya Gazette Notice No. 12526  published on 22nd December 2017, in the Kenya Gazete  Vol.CXIX-No-19  to the  146,8878 hectares  parcel of land  as Kiambu Western grazing area.

b)  An order  compelling the NLC  to issue a new Gazette  Notice of the acquisition  of the land indicating,  the individual owners  of the parcels of land erroneously  referred  to collectively  as Kiambu Western Grazing area

c)  An order compelling Kiambu County Government to within 7 days of the Judgment  release Ndeiya Subdivision  maps and scheme  plans (Maps)  for Nachu/ Mikuyuini , Nachu / Ndacha, Nguirubi/Thigio and Nguruibi/ Ndiuni  to survey  of Kenya for the updating of the National land maps

d) An order compelling the NLC  to make prompt  full fair and immediate  compensation  of all persons affected by the SGR Phase 2A

e)  The Honourable Court be pleased to issue any  other or further remedy that the  Honourable Court  shall deem fit to grant.

The Petitioners averred that  under Article  3(1)  of the Constitution, the Petitioners have  an obligation to  respect, uphold and  defend the Constitution. That the Respondents published an undated Gazette Notice in the Kenya Gazettte on 22nd December 2017,giving Notice of the government’s intention to  acquire the parcels of land  listed therein  on behalf of  Kenya Railways  Corporation in Kiambu, Kajiado and Nakuru Counties,  for purposes of the construction of the  Standard Gauge  Railway. That the undated Gazette Notice refers to a parcel of land measuring some 146. 8878  ha   known as “ Kiambu Western Grazing area”effectively meaning it is land without private owner . That the said land is  in Ndeiya area .

That Ndeiya is made up of four settlement schemes namely Nachu/ Ndacha, Nachu/Mikuyuini, Nguirubi/ Thigioand Nguruibi/ Ndiuni . Further, that in the 1990s, the land was  subdivided into various  parcels and allocated  to individuals through  a balloting  system after which  upon payment of Ksh.2500/=  for each allotment  the persons were issued  with ownership documents  in form of allotment letters and title deeds. That Kshs.2,500/= was to pay for  allotment letters and title deeds  . That unfortunately upon carrying out the survey, the surveyor the  interested Party  withheld the subdivision  maps and never presented  them to survey of Kenya  for updating of the National  land  maps  and registration because it was not paid  surveys fees by the then  Kiambu County  Council.

That  when  the land was acquired for the  Nairobi – Naivasha Section  of the Standard Gauge Railway Phase 2A , the project affected  land owners were not compensated  by the 3rd & 4th Respondents because  the land was collectively gazetted  by the 3rd Respondent  as Kiambu Western Grazing area, and not as subdivided parcels of land legally owned by  private individuals. That in May 2018, the  County Government of Kiambu paid Harunai Associates  their outstanding  Survey fees in full and  the said Firm presented the Ndeiya subdivision maps to the Governor of Kiambu County, at a public Ceremony. That However, the said maps have not been remitted to the  Survey of Kenya  and attempts to get the County  Government of Kiambu to  submit the maps  have been fruitless.

Further that the untenable state of affairs means that the land owners cannot be compensated from the SGR project and they also cannot do subdivisions, change of use, develop or apply for loans with their parcels of land because the said parcels are not documented at the Survey of Kenya.

That the Government began Constructing the Ngongto Suswa Road  in Ndeiya and already KERRAis illegally trespassing through the said private parcels of land and ignoring land owners,  claiming that the land is not documented. That the takeover of private land for a public purpose without prompt full and immediate compensation  offends Articles 10, 40,47 , 64 and 259 of the Constitution 2010. Further, that Article 242(2)(d), which provides for the enjoyment of rights and fundamental freedoms  was violated to the extent that private property was taken  over without  compensation by private interests. Further that Article  47was violated to the extent that the failure /refusal by the  County  Government of Kiambu  to remit maps  to Survey of Kenya  is not administrative  action that is expeditious , efficient , lawful, reasonable and procedurally fair. That Article 47  was violated to the extent  that the 3rd & 4th Respondents,have failed to carry out due diligence to establish the real owners of the land in issue.

In his Supporting Affidavit,  Okiya Omtata Okoitireaffirmed and  repeated the facts and averment stated  and included in the Petition  and averred that the  Respondents have an  obligation to  uphold, protect  and defend the Constitution. That there will be  disastrous  implications to the rule of law .

The Petition is opposed and the 4th Respondents filed a Replying Affidavit sworn by its Senior  Legal Officer   Stanley Gitari  on 25th November 2019,  who averred that the case relates to  the acquisition of  146. 8878  ha, parcels of land by the 3rd Respondent  through Gazette Notice   12526,  on behalf of the 4th Respondent  for the construction of the  Nairobi- Naivasha  Section of the Standard Gauge Railway . That the Petition is misconceived and discloses no cause of action against the 4th Respondent and the Petitioners are intending to reap where they have not sown. That the Petitioner have no locus standi to commence and or maintain these proceedings for they have no proprietary interests at all in the suit property for the land was gazetted as “Kiambu Western Grazing area”, making it Community land. Further, that the 4th Respondent has no mandate in acquiring land for public purposes and compensating the aggrieved land owners, and the said mandate is a preserve of the 3rd Respondent. That the 4th Respondent has no role in survey of the land and neither does it have any association  with the County Government  of Kiambu. That the 4th Respondent has not infringed on any fundamental rights  and thus the Petition is an abuse of the court process.

The  1st & 2nd Respondents  filed grounds of opposition  dated 21st November 2019 and opposed the Petition on  the grounds that the  Petitioners have not annexed  evidence of authority to  file the Petition on behalf of Ndeiya owners . That no evidence has been produced to show that the properties  in issue fall within the  gazetted Kiambu  Western Grazing  Area. Further that the Petitioners have not provided any evidence that the government is developing the area  where the suit properties are situated  nor taken possession of the suit properties and trespassed.

Further,  that  the process of compulsory acquisition  has not been completed to necessitate  the intervention sought from the Court  and the survey of land precedes issuance of  Certificate of ownership . That the Petitioners ought to have carried out due diligence to ensure that the land was surveyed. That the Petitioners have not demonstrated that the Respondents have failed to carry out their constitutional mandate to warrant intervention sought from the Court.

That the Petition is misconceived, frivolous and vexatiousand that the Petitioners have failed to establish any Constitutional or statutory right forming the basis of these proceedings and that the Petition has no basis in Law. That the Petitioners have failed to demonstrate which of their fundamental right or freedoms are under threat or have been infringed by the 1st & 2nd Respondent. That the legality of the title is disputed and the Petitioners cannot base their  Petition on the  allegations that their rights to properties  have been violated.

The 5th Respondent also filed grounds of opposition dated  25th November 2019, and  opposed the Petition on the grounds that  the Petition is incurable defective  and is an abuse of the Court process as the Petitioners do not have locus standi to institute the Petition as they are not rightful owners.  Further, the Petition does not disclose any reasonable cause of action. That the 5th Respondent in collaboration with other partners have already listed 147 parcels of land, affected by the SGR which have been verified and a list submitted to the 3rd Respondent  for consideration and further action.

Further that the 5th Respondent instructed the Interested Party herein to forward  the Survey records  to the Director of Survey  to pave way and kick start the process of  compensation, and whether the same were forwarded is not within the knowledge of the 5th Respondent . That failure by the Interested party to act cannot be blamed on the 5th Respondent herein.

The Petitioners filed a Supplementary Affidavit sworn by Okiya Omtatah Okoiti on 3rd March 2020,  in which he  annexed documents relating to the acquisition of the land, title deeds, Valuation report , beacon certificate  and the map  of KENTRACO transmission  line way leave .

The Interested Party swore a Replying Affidavit on 2nd  August 2019,sworn by  S.A Harunani, who averred that  sometime in  the 1990s,he was instructed  by the Defunct County  Council  of Kiambu to carry out  survey work  in four settlement schemes. That he undertook the task and sought to be paid his professional fees, but the same was not forthcoming of which he held onto the subdivisions as a lien. Further that in May 2018, upon payment of his professional fees, he released the Ndeiya Subdivision maps to County Government of Kiambu for approval  and the Interested Party had been waiting to receive back the subdivision maps from the County Government of Kiambu, with  authorization to submit the same to the  Director of Survey .

That the documents sought from the Interested Party  are in their custody subject to  contractual obligation  and degazettement of the Kiambu Western Grazing area by the 5th Respondent . That he has been advised by his Advocate that the Petition has no merit  and no proper foundation has been laid for the orders sought.

The Petition was canvassed by way of written submissions which the Court has carefully read and considered. The Court has further considered the Petition in general, the Affidavits, Grounds of Opposition and the relevant provisions of law and finds that the issues for determination are;

1. Whether the Petitioners have locus standi to institute the suit

2. Whether the  Ndeiya Land Owners have any proprietary rights to the suit property

3. Were there any violation of rights

4. Whether the Petitioners are entitled to the orders sought

1. Whether the Petitioners have locus standi to institute the suit

The Respondents have contended that the Petitioners do not have the  locus standi   to  institute this Petition and they have given various reasons among them being that the  Petitioners as they have no proprietary rights and  that  there is no  evidence of authority to  file the Petition on behalf of Ndeiya Land Owners. In the case of Law Society of Kenya …Vs…Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, the Court held that;

“Locus Standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue a in court of law”.

Further in the case of Alfred Njau and Others …Vs… City Council of Nairobi ( 1982) KAR 229, the Court also held that;-

“the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.

Article 22 of the Constitution of Kenya  provides that for the enforcement of the  Bill of Rights and on issue of locus standi  and it provides that

“22 Enforcement of Bill of Rights

(1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

a) a person acting on behalf of another person who cannot act in their own name;

b) a person acting as a member of, or in the interest of, a group or class of persons;

c) a person acting in the public interest; or

d) an association acting in the interest of one or more of its members.”

Further under Article 258 of the Constitution on enforcement of the Constitution it is stated:-

“258. Enforcement of this Constitution

(1) Every person has the right to institute court proceedings, claiming that this Constitution has been contravened, or is threatened with contravention.

(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—

(a) a person acting on behalf of another person who cannot act in their own name;

(b) a person acting as a member of, or in the interest of, a group or class of persons;

(c) a person acting in the public interest; or

(d) an association acting in the interest of one or more of its members.”

From the above Articles of the Constitution, it is evident that the  Constitution allows any person to file a Petition seeking that their rights have  been violated.  Further any person is empowered by the   Constitution to bring a Petition on behalf of another person, claiming that the persons rights have been violated and on behalf of other people. The Petitioners have indicated that they have brought the Petition on behalf of Ndeiya Land Owners, and they need not have any proprietary interest nor is  an authority required from the said Ndeiya Land Owners for the Petition to be properly before Court.

As the Petitioners have filed this suit claiming that the rights of the Ndeiya Land Owners have been violated, they have thus filed the same  on behalf of the said persons and   as per  Article 22 of the Constitution they are well vested with the appropriate locus as they have a right to do so. See the case of International Community of Women Living With HIV Registered Trustees …Vs…Co-ordination Board & 2 others; Teresia Otieno (Interested Party) [2021] eKLRwhere the Court held that;-

27. Our constitution underArticle 22 and 258 of the Constitutiongenerously allows every person to institute proceedings subject to claims set out in the said Articles without requirement of incorporation. In the instant Petition the Petitioner whether described as an incorporated or unincorporated body or whether a Trust or an NGO meets the qualification of a person who has locus standi to institute suit underArticles 22 and 258 of the Constitutionas defined under Article260 of the Constitution. There is in my view no requirement for a Petitioner to be either a company, or an association or other body of person so long as the person as defined underArticle 260 of the Constitutionis seeking remedies videArticle 22 and 258as set out in the respective Articles. There is no requirement for incorporation. I find that it does not matter whether the petitioner is a Trust or an NGO, but an association or body of persons instituting court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. I find and hold the Petitioner has locus standi to maintain the instant suit.”

Taking into account the above holding of the Court, this Court finds and holds that the Petitioners have the requisite  locus standi to maintain the instant Petition.

2. Whether the Ndeiya Land Owners have any proprietary rights to the suit property

The Petitioners contended that the suit property that is currently known as Kiambu Western Grazing zone, whose  categorization  is referenced to be  property that is not privately owned, is owned by members of Ndeiya Land Owners. That in the 1990’s, the then  Municipal Council of Kiambu allocated to  the Petitioners land in the said area, and that the  then  defunct  Municipal Council of Kiambu,  enlisted the services of the Interested Party  to subdivide the land.  However, the Interested  Party was not paid his professional fees and he failed to remit the said maps to the  County Council,  but has since remitted the maps when he was paid the said fees, but that the same has not been forwarded to the Director of Survey, That the maps  at the Survey registry indicate that the  suit property is  still known as Western Grazing  area, despite the  property being privately owned.

It is  the 5th Respondent’s contention that the Petitioners have not demonstrated that the maps are in their custody  and  that it has fulfilled its obligations by compiling  final and verified lists of  affected  parcels. The 1st & 2nd Respondents on the other hand have  questioned  how the titles were issued  without survey being done.

The Court has perused the   documentations produced in evidence by the Petitioners. Most importantly, it is worthy  to note that the  5th Respondent, who is the County Government of Kiambu that took over the  functions of the defunct Municipal Council of Kiambu has not  controverted the Petitioners’ allegations that there were private citizens that were allocated the suit property. The Court has seen various allocation cards, allocation letters  and titles deeds that were issued to various persons. The Court has further seen a letter dated 13th February 2019   addressed to the Chairman of the National Land Commission  by Mr. Martin  Njogu Mbugua,   the County Secretary and head  of Public Service Referenced  Compulsory Acquisition of  Kiambu Western Grazing area  and its noted that amongst the  terms of reference  of the Committee  was to identify  and verify  the allottees  of land in  this area  and to further Identify the persons affected by Standard  Gauge Railway. Therefore, there is no doubt in the Court’s mind that indeed that the suit property had been allotted to private citizens and that there are Ndeiya Land Owners, who have proprietary interest in the said schemes that  have been  listed .

S. A Harunani  in his Replying Affidavit sworn on  22nd August 2019, on behalf of the Interested Party did indicate that  in the 1990’s,  he was instructed by the defunct  Kiambu County Council   to carry out survey works in the schemes known as  Nachu/ Ndacha. Nachu Mikuyuini, Nguruibi/Thigio and Nguruibi/ Ndiuni,  to which he undertook the survey works  and in May 2018,  upon subdivisions, he released the Ndeiya subdivisions maps to  County Government of Kiambu, for approval and that the  documents  sought from the Interested Party  are in their custody,  subject to contractual  obligation and  degazettement   of the Western Grazing area,hence confirming that the Western Grazing area, is indeed the    schemes.

The Court thus finds and holds that Petitioners who have so far produced verified documentations of land ownership  over the said schemes namely Ndeiya Land Owners having been allotted the suit property and issued with either allotment letter and others which have  titled deeds,  have proprietary interest over the suit property.

3. Were there any violation of rights

The Petitioners have contended that the Respondents are in violation of their Constitutional rights including their rights under   of Article 10 of the Constitution, violation of the right to public participation under Article 50  (1)as the people affected by the  compulsory acquisition  were not afforded a fair hearing,  and were not engaged in the processes of compulsory acquisition  , Violations of their rights under Article 40,of the Constitution. Further violations of their rights under Article 10(2)  (a), Article 47 amongst other violations.

The Court has found and held that the Ndeiya Land Owners,  have proprietary rights over the suit property  and that means that the said owners were entitled to be consulted on every issue that affected the suit property.  This is so since it is the Petitioner’s contention that  the

suit property that has been Gazetted by the  3rd Respondent for Compulsory Acquisition has been Gazetted as  property that is not  privately owned. Further, they are also entitled to Fair Administrative Action. The  Petitioners have averred that during the Compulsory Acquisition of  the property, the Ndeiya Land Owners  were not accorded a Fair  hearing and  the Respondents trespassed on their lands and started construction. That the  5th Respondent has failed  to  submit the survey map  on the  suit land for registration  and authentication  by the Director of Survey . That when the land was acquired for SGR Phase 2A, the project  affected  landowners were not compensated  because the Land had collectively been gazetted  by the 3rd Respondent as Kiambu   Western Grazing area.

Further that their rights under Article 40 of the Constitution wherein they have a right to enjoy their right to ownership without being Arbitrarily deprived of the said ownership and that before commencing the impugned hearing they were not consulted.

The process of compulsory acquisition was laid down in the decided case ofPatrick Musimba …Vs… National Land Commission & 4 others [2016] eKLR where the court held as follows;

“Under Section 107 of the Land Act, the National Land Commission (the 1st Respondent herein) is ordinarily prompted by the national or county government through the Cabinet Secretary or County Executive member respectively. The land must be acquired for a public purpose or in public interest as dictated by Article 40(3) of the Constitution. In our view, the threshold must be met: the reason for the acquisition must not be remote or fanciful. The National Land Commission needs to be satisfied in these respects and this it can do by undertaking the necessary diligent inquiries including interviewing the body intending to acquire the property.

Under Sections 107 and 110 of the Land Act, the National Land Commission must then publish in the gazette a notice of the intention to acquire the land. The notice is also to be delivered to the Registrar as well as every person who appears to have an interest in the land.

As part of the National Land Commission’s due diligence strategy, the National Land Commission must also ensure that the land to be acquired is authenticated by the survey department for the rather obvious reason that the owner be identified. In the course of such inquiries, the National Land Commission is also to inspect the land and do all things as may be necessary to ascertain whtheer the land is suitable for the intended purpose: see Section 108 of the Land Act.

The foregoing process constitutes the preliminary or pre-inquiry stage of the acquisition.

The burden at this stage is then cast upon the National Land Commission and as can be apparent from a mtheodical reading of Sections 107 through 110 of the Land Act, the landowner’s role is limited to that of a distant by stander with substantial interest.

Section 112 of the Land Act then involves the landowner directly for purposes of determining proprietary interest and compensation. The section has an elaborate procedure with the National Land Commission enjoined to gazette an intended inquiry and the service of the notice of inquiry on every person

attached. The inquiry hearing determines the persons interested and who are to be compensated. The National Land Commission exercises quasi-judicial powers at this stage.

On completion of the inquiry the National Land Commission makes a separate award of compensation for every person determined to be interested in the land and then offers compensation. The compensation may take either of the two forms prescribed. It could be a monetary award. It could also be land in lieu of the monetary award, if land of equivalent value, is available. Once the award is accepted, it must be promptly paid by the National Land Commission. Where it is not accepted then the payment is to be made into a special compensation account held by the National Land Commission: see Sections 113- 119 of the Land Act.

The process is completed by the possession of the land in question being taken by the National Land Commission once payment is made even though the possession may actually be taken before all the procedures are followed through and no compensation has been made. The property is then deemed to have vested in the National or County Government as the case may be with both the proprietor and the land registrar being duly notified: see Sections 120-122 of the Land Act.

If land is so acquired the just compensation is to be paid promptly in full to persons whose interests in land have been determined: See Section 111 of the Land Act. This is in line with the Constitutional requirement under Article 40(3) of the Constitution that no person shall be deprived of his property of any description unless the acquisition is for a public purpose and subjected to prompt payment in full of just compensation.

The Constitution dictates that acquisition be in accordance with the provisions of the Constitution itself and any Act of Parliament. The Constitution itself only provides for just compensation being made promptly.

The current procedure for acquisition of land by the State is as outlined above. As can be seen parliament took very seriously its constitutional duty to legislate on the State’s powers of deprivation or expropriation. Perhaps conscious of the emotive nature of land issues, the Legislature appeared scrupulous and contemplative.

From the above, it is clear that  in the process of compulsory acquisition, though the  role of a land owner is limited  to that of a distant by stander, the said role is  with substantial interest. Further, the landowner  must be directly  involved for purposes of determining proprietary interest and compensation. The Contention by the Petitioners that there were  land owners who were deprived off their rights  to the suit property during Phase 2A of the SGR, has not been controverted. It is further not in doubt that the fact that the suit property has been  Gazetted as  Kiambu  Western Grazing area , the land owners who the Court has held have proprietary interest as they were allotted the suit property were not afforded a chance to be heard or consulted as the decision of compulsory  acquisition was ongoing.

Article 40 of the Constitution provides for the protection of rights to property.  Article 40(1)provides as follows:-

“Subject to article 65, every person has the right, either individually or in association with others, to acquire and own property:-

(a) of any description; and

(b) in any part of Kenya”

Article 40(3) provides as follows:-

“The state shall not deprive a person of property of any description or of any interest in, or right over, property of any description, unless the deprivation:-

(a) results from an acquisition of land or a conversion of any interest in land, or title to land, in accordance with Chapter Five, or

(b) is for public purpose or in the public interest and is carried out in accordance with this constitution and any Act of Parliament that:-

(i) requires prompt payment in full, or just compensation to the persons; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law”.

The said  Articles requires prompt payment and that due process must be  followed in case of compulsory acquisition.  In this instant case, some Ndeiya Land Owners failed to be afforded such an opportunity and the Court  finds and holds that their rights were indeed violated as every person  who has  an interest  ought to have been served with a copy which in this case the Petitioners were not.  Further, there ought to have been prompt and just payment of compensation for the acquisition of the properties. See the case of  John Mitua Kiema …Vs… Kenya National Lands Commission & 2 others [2020] eKLR

“It is apparent that once the 1st Respondent expressed their intention to acquire the said parcels of land, then the provisions of Section 112(1) of the Land Act sets in and inquiries stage was to commence.  Section 112(1) of the Land Act provides:-

112. (1)At least thirty days after publishing the notice of intention to acquire land, the Commission shall appoint a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land, and shall—

(a) cause notice of the inquiry to be published in the Gazette or county Gazette at least fifteen days before the inquiry; and;

(b) serve a copy of the notice on every person who appears to the Commission to be interested or who claims to be interested in the land.”

From the letters of allocation   produced in evidence, the Petitioners were allocated the suit property in the 1990’s.  The Interested Party was then tasked to subdivide the land and further submit the same to the Director of Survey and it seems that this was never done until sometime in 2018. Though the 5th Respondent has denied being in possession of the maps, the Court has seen the letter dated 17th December 2018, by the Deputy Director Lands Survey  & Geo information’s confirming that the  County Government is verifying  the maps  registration Section.

While the Court appreciates that  it would seem that there were  acts ongoing to be able to  put their house in order,   under the  Constitution, the Petitioners are  entitled to  administrative action, that is expeditious, efficient, lawful, reasonable and procedurally fair under  Article 47. (1)   of the Constitution and   the Court finds and holds that this right too has been violated.

4. Whether the Petitioners are entitled to the orders sought

The Petitioners have sought for various orders  including  an Order of quashing  the reference  in the undated Kenya Gazette  Notice No. 12526  published on 22nd December 2017, An order  compelling the National Land Commission to issue a new Gazette  Notice of the acquisition  of the land indicating  the individual owners  of the parcels of land erroneously  referred  to collectively  as Kiambu Western Grazing area, An order compelling  Kiambu County Government  to within 7 days of the Judgment  release Ndeiya Subdivision  maps and scheme  plans (Maps)  for Nachu/ Mikuyuini , Nachu / Ndacha, Nguirubi/Thigio and Nguruibi/ Ndiuni,  to survey  of Kenya for the updating of the National land maps, An order compelling the National Land Commission to make prompt  full fair and immediate  compensation  of all persons affected by the SGR Phase 2A.

The Court has already held that the Petitioners being   Ndeiya Land Ownerswho have produced verified   documents, have proprietary rights. Further,  it is  not in doubt that they are unable to enjoy their rights  to use of the suit property while the same is  still registered as   Kiambu Western Grazing area, The only thing that would cure the same is if the report of subdivision will be forwarded to the Director of Survey and further upon  the said submission, then automatically the subdivisions would be able to show the true reflections of the issues and there would  necessitate the process of acquisition being  changed as what will be acquired is no longer the “Kiambu Western Grazing area” by individual  parcels of land from owners. Consequently, the Court thus finds  and holds that the Orders sought by the Petitioners are reasonable having found that they have   proprietary Interest.

This does not in any way impede or take away the mandate of the  Kiambu County Government of verification of documents to ascertain who the true land owners are. For the above reasons, the Court finds and holds that the Petitioners herein are entitled to the orders sought in the instant Petition.

The Upshot of the foregoing is that the Court finds and holds that the Petition dated 10th July 2019,as brought by the Petitioners herein is merited and it is allowed entirely in terms of prayers No (a) (b) (c) (d) and the said new gazette Notice to be issued within a period of 30 days from the date of this Judgment.

It is so ordered

DATED, SIGNED AND DELIVERED AT THIKA THIS 8TH DAY OF OCTOBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Lucy